Deposition Tweeting

Everyone knows that Illinois prohibits tweeting while operating a motor vehicle. 625 ILCS 5/12-610.2 (here) bans the use of any electronic communication device when driving. Avid cyclists also know that a Chicago ordinance (here) prohibits tweeting while operating a bicycle. Going a step further, one judge believes that lawyers should not tweet while conducting a deposition.

According to an ABA Journal article (here), a Texas state court judge has barred live tweets during the deposition of a former county sheriff who is being sued for allegedly receiving illegal campaign contributions. Lamenting the lack of guidance on the live-tweeting issue, the judge accurately observed that “[o]ur technology is far out pacing our ability to formulate rules.”

If an Illinois judge allowed the tweeting of deposition testimony, Illinois Rule of Professional Conduct 1.6(a) would require that the tweeting lawyer first obtain her client’s informed consent. Rule 1.6(a) prohibits an attorney from revealing information relating to the representation of a client without the client’s informed consent. That prohibition applies to all information regarding the representation and is not limited to secret or confidential information, or information received from the client.  And even if an Illinois judge does permit deposition tweeting and a client is willing to consent, hopefully counsel will devote his time and energy at the deposition to adequately representing his client rather than to keeping his “followers” updated or entertained.

How much is one Twitter follower worth?

If the rightful owner of a Twitter account is found to have been damaged by an adverse party, how much should the account owner be compensated?  

There is a lawsuit pending in California Federal Court that might shed some light on the subject.  In that case, an employee of a popular mobile phone site, PhoneDog.com, quit his job after nearly four years.  While at the company, the employee had amassed 17,000 Twitter followers under the name @Phonedog_Noah.

After leaving the company, the man changed his Twitter handle to remove any reference to his former employer, but he kept all 17,000 followers.  Eight months later, PhoneDog sued, saying that the list of Twitter followers was their property because it was actually a customer list.  PhoneDog seeks damages of $2.50 a month per follower for eight months, for a total of $340,000. 

How in the heck did they come up with $2.50 per month?  I guess for negotiation purposes you could start with the total settlement demand and then calculate that down to a monthly amount.    But this lawsuit was filed last week, so it appears that they are finished negotiating.  Now PhoneDog better be preparing for trial.  They’re going to have to put forth some evidence as to damages.  It will be interesting to see how their expert explains the damages.  

I have put this California lawsuit on the list of cases that I am going to try to follow.  If I hear anything else about the value of this case, I will let you know.  It's an interesting question.  I wish my Twitter followers were worth $2.50 per month. 

By the way, if you aren't already following @husemanlaw on Twitter, you really need to click HERE now.